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【租船合同】關于對停租條款的若干解釋

放大字體  縮小字體 2020-06-05  來源:技術資料  熱度:167
【租船合同】關于對停租條款的若干解釋

摘要:針對現實中碰到各種各樣涉及到合同停租事項,本文列舉近年來不同的倫敦仲裁判例,簡要分析該NYPE46合同格式中15條停租條款在實務中的運用及解釋的基本原則。

停租(off hire)是定期租船合同(TC/TCT)中重要內容之一,定期租船合同下很多爭議也都與該停租條款有關;近期碰到一案例就圍繞該停租條款發生的。

案件經過如下:

A輪以帶有附加條款的NPYE46合同格式執行一個南美裝糧到歐洲卸的TCT 航次,租家最終安排到英國某港卸貨。11月20日1415左右引水上船,1445左右船長上駕駛臺,大霧影響開航。在1500左右引水發現雷達異常報警,駕駛員上羅經甲板修復,但關機后無法重啟。隨后引水決定離船,船于1815左右卸完貨。代理取消拖輪及重新安排離港時間,11月22日1530左右順利離港。

租家聲稱從20日1815到22日1530期間由于雷達損壞造成延誤,給租家造成損失,主張這段時間內船舶應該停租;但船東不同意,聲稱延誤是因為大霧造成的。

在分析該案例之前,先來看看最近的幾個以NYPE合同下的倫敦仲裁判例,再來判斷租家到底是否有權利主張停租。

一、London Arbitration11/02 (2002) 591 LMLN 3案中,船于1月9日抵達卸港,但租家未支付租金,船東拒絕進港卸貨;基于租家事實上毀約,船東15日發3天的撤船通知,但租家仍未按船東要求支付租金,船東撤船。租家抗辯說從9日開始停租,但被法官駁回。

In that situation, the Owners were entitled to refuse to discharge and, ifnecessary, refuse to enter the first discharge port in order to avoid beingforced to discharge.

此案還涉及到提單簽發的問題,不在此討論。

二、London Arbitration14/02 (2002) 594 LMLN 3 案中,船于11月22日1900遞交交船通知及NOR,23日0120抵達內錨地。1000驗艙,5個中的2個未能通過驗艙;1716因為船東債務方面的原因船舶被扣(arrest);24日1245另外兩個艙通過驗艙;12月3日0904扣押解除。4日1205起錨靠泊,1345靠好,1425開始裝貨。

因為船舶被扣,租家主張從11月23日1716開始到12月3日0904期間停租。法官認為,雖然因為扣押導致full working ofvessel has been prevented,但租家未能提供由于船舶被扣有實際損失net of time lost,船舶可以提早靠泊等證據,法官駁回租家抗辯,在被扣期間,租家無權停租。部分陳詞如下:

The problem for the charterers was that they had no hard evidence tosupport their theory. Had they wished to make good that point, they should atleast have secured a statement from the sub-charterers, or from the elevator’soperators, even from the port agents, to the effect that the vessel’s arrestentailed her losing her turn under the elevators.

However, if the vessel had been able to load earlier at the elevator butwas unable to do so because of being under arrest, then the tribunal would haveexpected laytime to haven been interrupted. That helpful evidence was availableto the charterers, who had chosen not to produce it.

Thus, neither side had produced conclusive evidence as to whether or notthe arrest of the vessel had interfered with her loading schedule.

Thetribunal would accept that the wording of Rider Clause 53 did not refer (as didclause 15) to the "full working of the vessel" being prevented.However, there was no doubt that there was a reference in Rider Clause 53 to"all time lost" by reason of arrest being "treated as off-hire".But that required the charterers being able to show that time had been lost. Ifthe service required of the vessel was simply to wait in a queue for theelevator, arrest or not, no time was lost.

The charterers had said that whilst under arrest the vessel was unable toperform the service immediately required of her, which was to be available toberth at any time. However, that argument would be rejected. Whilst it was truethat the arrest of the vessel might have had an influence on the sub-charterers'berthing schedule, the burden of proof was on the charterers, and they had beenunable to discharge that burden.

Hadit been otherwise, time would have been "lost" and expenses no doubtincurred, all of which would have fallen under the provisions of Rider Clause53 which protected the charterers against such a loss. The clause was notdesigned to protect the charterers from losses they had not incurred.

Accordingly, the vessel was notoff-hire due to her arrest.

同時因為未能通過驗艙,租家主張從22日1900到23日1000也應該停租,但被法官駁回。

However,there was nothing in the charterparty to suggest that they were entitled toclaim off-hire for the period between delivery and the time of the first holdinspection, and the clear wording of Rider Clause 40 implied to the contrary.

Accordinglythe charterers' counterclaim would be rejected.

三、London Arbitration10/07 (2007) 719 LMLN 1 案中,船舶在錨地等泊期間進行維修工作,租家主張此維修(2月24日從0815到1819)期間應該停租,但由于租家沒有實際的時間損失(net loss of time ) ,租家該主張被法官駁回。

Held , that the charterers couldhave no complaint in relation to the position where the ship was at theanchorage. They and/or the receivers knew where she was and made no requestthat she shift. There was no loss of time, for the reasons given by the owners.The repairs caused no delay: even if they had not taken place, dischargingwould not have started any sooner. Accordingly, the off-hire claim had to fail,as did the charterers’ claims for related extra expenses.

四、London Arbitration 27/07 (2007) 733 LMLN 3 案中,船從印度Mundra裝小麥到也門卸,11月10日抵達卸港Saleef。由于也門衛生當局認為有貨損,拒絕船舶靠泊卸貨,租家主張從11日2010開始到22日0600(聲稱衛生當局禁止),23日0000到29日1930(聲稱船長拒絕檢驗員提取貨樣),12月2日1700到2045(聲稱船長上岸看病延誤開航)三個期間船舶應該停租。

考慮到事實上短短的6天航行時間并不能造成貨損,法官認為貨損在裝港就已經發生的,而船長并不被要求對此,裝載租家的貨物負有責任,因此第一個事件衛生當局拒絕靠泊卸貨期間不可以停租;第二個事件因為只是聽從租家的航次指示,船舶方面沒有過錯,也不可以停租;第三個事件船長上岸就醫并沒有給租家造成實際的時間損失,租家也不可以停租。相關陳詞如下:

Held, that it was highly improbable that the alleged cargo damage occurred duringthe voyage, both because of the nature of the damage complained of, and becauseof the duration of the voyage – 6 days only. It was almost totallyinconceivable that the condition of the wheat should have deteriorated, and wasout of the question that any ship-caused infestation could have occurred,within that short timespan. Moreover, the charterers themselves considered thatthe damage existed on loading. The charterers’ argument that the master shouldhave stopped loading and claused the bills of lading would be rejected. Tosuggest that the master should have known that the cargo was in some waydefective was rather like suggesting that a master should know whether a graincargo was genetically modified or not: the mere fact that he might have seendark or black grains, and even possibly dust, was not enough to alert him tothere being any defect in the cargo. He was entitled to think that if that waswhat the charterers wanted to load, that was their business. A master could notbe expected, when dealing with a bulk cargo of that kind, to have any kind ofexpertise in relation to the quality or condition of the cargo. Still less didhe owe any duty to charterers to intervene and stop loading, or even to alertthem. It was up to charterers to load what they wanted and to ensure that whatthey wanted was loaded.

Hadthe mate’s receipts, when tendered, or the charterers’ voyage instructions,made reference to – for example –“milling wheat free of black or darkenedgrains and dust”, the position might have been different; but that was not thecase. The simple description of “milling wheat” could only mean to a ship’smaster that the cargo was wheat which was for milling – no more than that – andthat cargo complied with that description when it was tendered for loading. Itwas therefore clear, regardless of where the burden of proof lay, that thecondition of the cargo on discharge was not materially different from itscondition on loading, and that there was no fault on the master’s or owners’part in that respect. The consequences resulted directly from the fact that thecharterers loaded that particular cargo, and they had to bear thoseconsequences.

Accordingly,the charterers’ counterclaim failed.

Asa matter of common sense it would be strange if charterers could put a ship offhire because of events which resulted from compliance with their orders withoutany responsibility on the ship’s part, as in the present case. Very clear wordswould be required to achieve such an outcome. Indeed, there was authority toprecisely that effect: The Laconian Confidence [1997] 1 Lloyd’s Rep 139 and TheRijn [1981] 2 Lloyd’s Rep 267. It was also highly debatable whether theefficiency of the ship as a ship was affected by what happened. She was fullycapable of giving discharge, which was what the charterers wanted, but the healthauthority refused to allow the cargo to come ashore. Accordingly, clause 15 didnot help the charterers.

Nordid the charterers get any comfort from clause 39, for the simple reason thatthe ship was never arrested. And clause 50 did not avail the charterers,because even if discharge was stopped as a result of government restrictions,those were not caused by the ship: rather they were caused by compliance withthe charterers’ orders to load the cargo. Clause 56 was irrelevant becausethere was no detention or threatened detention by port authorities. Even ifthere had been some such detention or threat, it could not have been said tohave caused any loss of time. Lastly, there was the underlying point that allthe problems arose from compliance with the charterers’ orders to load thecargo and therefore, absent very clear words, the charterers could not relyupon that in order to justify putting the ship off hire.

Accordinglythe charterers’ claim to put the ship off hire during the first period failed.

Asto the second off-hire period, the true reason for the delay during that periodwas not any refusal by the master to allow samples to be taken. Rather it wasthe fact that the health authority had to be present during discharge, buttheir representatives did not work during the Eid holidays. The claim to putthe ship off hire failed.

Asto the third off-hire period, that claim also failed on the facts. Thecharterers’ contention was that because the master was ashore, the ship couldnot be readied for sailing and time was lost. The evidence showed, however,that whilst the master was ashore tugs arrived, the chief officer completedformalities and prepared to take the ship to anchorage, and that the masterboarded at anchorage five minutes after the tugs had been fastened and linessingled-up. There was plainly no loss of time and thus no off-hire case couldbe sustained.

Accordingly,the owners’ claim succeeded in full for $243,370.17 plus interest.

五、London Arbitration9/08 (2008) 748 LMLN 3 案中,船舶執行從中國裝袋裝大米到非洲卸的TCT航次,租期約70/90天。在其中一個卸港船舶被收貨人扣押,此外船吊損壞,租家主張此期間船舶停租。因被扣押期間,船舶仍在等租家下個航次指示,及船吊損壞期間,都沒有給租家造成實際的時間損失(net loss of time ),法官駁回租家主張,部分陳詞如下:

Whethervessel off-hire due to arrest at discharge port

Thevessel was arrested by the cargo receivers at one of the discharge ports. Thecharterers, relying on clause 59 of the charter, placed the vessel off-hire.

Held, that the charterers had not produced evidence of voyage orders that werebeing thwarted because the vessel was unable to depart from the port during theperiod under arrest. The tribunal placed weight on the fact that although thecharterers instructed the master to sail after the vessel’s release theynevertheless ordered him to remain outside the port limits for two further dayswaiting for instructions regarding her next destination. On the evidence, andon the balance of probabilities, no time was actually lost by the charterersduring the period of arrest. It followed that the vessel was not off-hire.

Whethervessel off-hire due to crane breakdowns

Thevessel’s cranes suffered a series of breakdowns at the discharge ports, duringwhich time they ceased to be at the disposal of the charterers’ stevedores. Thecharterers, invoking clause 21, placed the vessel off-hire at various times ata ratio of ¼th of the total of the periods that the breakdowns lasted.

Theowners said that clause 21, like clause 59, was a “net loss of time” provisionand submitted that since no time was lost to the charterers, the vessel was notoff-hire.

Thecharterers maintained their entitlement to deduct hire pro-rata, contendingthat clause 21 was to be read in conjunction with clause 15 and that thebreakdowns did, in fact, slow discharging operations down and cause themadditional expense.

Held, that on the evidence no time had actually been lost to the charterers as aresult of the crane breakdowns. Either the vessel was otherwise occupied duringthe periods of incapacity or work in the holds affected by the defective craneswas completed well before the work in the holds that were unaffected by thefailure of the cranes. Moreover, the specific provisions of clause 21 prevailedover those of clause 15. Accordingly, the vessel was not off-hire.

六、London Arbitration (2010) 798 LMLN 1, “The Saldanha”案中,船舶在過亞丁灣期間,于2009年2月22日被索馬里海盜劫持,4月25日被釋放,5月2日回到和被劫持位置等效地點(equivalent position)。租家主張被海盜劫持期間從2月22日到5月2日,船舶應該停租。鑒于海盜劫持不能歸為共同海損事故所引起的扣押,也不算是人員的不足和/或過錯,也不能歸類于15條停租條款中的 “Any other cause”,任何其他(阻止船舶完全運作)的原因,法官Gross駁回租家訴求,同時認為海盜劫持是個classisexample of a totally extraneous cause,非常典型的完全是外部原因造成的例子。綜上原因,在海盜劫持期間租家無權停租。以下為部分陳詞:

Thearbitrators determined a number of preliminary issues arising under clause 15and under other clauses of the charterparty. As to clause 15, the tribunal heldthat the detention by pirates did not have the effect of putting the vesseloff-hire under that clause. The tribunal also held that the vessel was notoff-hire under clause 39 and that the war risk and insurance provisions of thecharterparty did not preclude the owners from claiming hire in respect ofperiods during which the vessel was under the control of pirates.

Thecharterers appealed to the High Court in relation to the tribunal’sdetermination that the vessel was not off-hire under clause 15. There was noappeal in relation to the tribunal’s other determinations.

Thecharterers submitted that they had succeeded in bringing themselves within oneor more of the following three causes contained in clause 15 of thecharterparty, namely (1) “Detention by average accidents to ship or cargo”, (2)“Default and/or deficiency of men”, and (3) “Any other cause”.

Held, that as to (1) there was no “Detention by average accidents to ship orcargo”. In The Mareva AS [1977] 1 Lloyd’s Rep 368, 381 Kerr J said that“average accident” meant “an accident which causes damage”. On any view, thepiracy incident did not result in damage to the vessel. Kerr J’s observationhad been accepted as correct for 30 years, and as settling the issue of themeaning of “average accident” in the NYPE form. Innumerable charterparties hadbeen made on that basis. The Court would only differ from the view expressed byKerr J if persuaded that it was clearly wrong. To the contrary, Kerr J’s viewseemed right. Moreover, the incident could not properly be described as an“accident”. Furthermore, “average”, in the present context was not simply to beequated with a peril ordinarily covered by marine insurance. At the least, inthe present context, damage to the ship was an essential ingredient for thewording “average accidents to ship” to apply.

Asto (2) there was no “Default and/or deficiency of men”. The tribunal had beenasked to determine whether, on the (disputed) factual assumption that theofficers and crew had failed to take recognised anti-piracy precautions, beforeand during the attack, those failures would fall within the exception “defaultof men”. The tribunal had further been asked to assume that that failure on thepart of the officers and crew was a significant cause of the loss of timeresulting from the pirates taking over the vessel and consequent loss of fullworking of the vessel. The charterers had submitted that the natural meaning of“ default of men” included a failure to perform or a breach by the master andcrew of their duties. However, the context presented an insuperable obstacle toadopting the charterers’ construction of “default of men”. In context, “defaultof men” in clause 15 had a narrower construction, and meant a refusal byofficers or crew to perform all or part of their duties as owed to theshipowner and not the negligent or inadvertent performance of those duties.

Asto (3), the incident did not fall within the words “Any other cause”. Thestarting point was to underline that clause 15 contained the wording “ anyother cause ” rather than the wording “any other cause whatsoever ”. Thatdifference in wording was significant (see The Laconian Confidence [1997] 1Lloyd’s Rep 139, 150 – 151). The act of piracy was not eiusdem generis . It didnot arise out of the condition or efficiency of the vessel, or the crew, or thecargo, or the trading history, or any reasonable perception of such matters byoutside bodies. It was a truly extraneous cause. The effect of the bargaincontained within clause 15, construed in its general context, was that theowners did not take the risk of the full working of the vessel being preventedby an extraneous cause such as piracy. The charterers assumed that risk.

Inconclusion, the seizure of a ship by external actors was a recognised peril;but no such peril was covered by clause 15 of the charterparty. Moreover, andsignificantly, there was in the charterparty a “bespoke” clause dealing interalia with seizures. Clause 40 of the charterparty provided as follows:

“Clause40 – Seizure/Arrest/Requisition/Detention Should the Vessel be seized,arrested, requisitioned or detained during the currency of this Charter Partyby any authority or at the suit of any person having or purporting to have aclaim against or any interest in the Vessel, the Charterers’ liability to payhire shall cease immediately from the time of her seizure, arrest, requisitionor detention and all time so lost shall be treated as off-hire until the timeof her release…”

Plainly,however, clause 40 did not extend to cover seizure by pirates. Perhaps that wasthe charterers’ misfortune but it did not furnish justification for distortingthe meaning of clause 15. Should parties be minded to treat seizures by piratesas an off-hire event under a time charterparty, they could do sostraightforwardly and most obviously by way of an express provision in a“seizures” or “detention” clause. Alternatively and at the very least, theycould add the word “whatsoever” to the wording “any other cause”, although thatroute would not give quite the same certainty.

Theappeal would be dismissed.

七、London Arbitration 17/10 (2010) 805 LMLN 3(2)案中,租家安排到Novorossiysk裝小麥,由于貨艙有些油漬,在12月19日1620驗艙不通過,檢驗員離船;1900船長通知代理油漬已經清理完畢,貨艙備妥,要求安排檢驗員重新驗艙,但檢驗員等到第二天11點才上船,直到1620最終通過驗艙??紤]到停租條款是period off hire clause,不同于net loss of time clause,法官認為從19日1620到20日1130租家有權停租;但由于租家違反默示條款,未及時安排檢驗員上船,從1130到1620不可以停租。

On the particular facts of thepresent case, it was reasonable for the surveyor not to return on board before1100 the following day. However, no explanation had been suggested to satisfythe tribunal that it was proper for him not to pass the holds until 1620 thatday. Doing the best it could, the tribunal concluded that in all reason heshould have passed the holds by no later than 1130 on 20 September.

Accordingly, to that extent thecharterers were in breach of the implied term. The owners were entitled todamages for that breach, the damages being measured by reference to the extentof off-hire to which the charterers became entitled as a result of theirbreach. Accordingly, the owners were entitled to recover hire from 1130 to 1620on 20 September 2007.

In the result, therefore, thecharterers were entitled to withhold hire for a period of 19 hours 10 minutesbetween 1620 on 19 September and 1130 on 20 September. The owners’ claim fellto be reduced accordingly, and succeeded in the sum of $37,584.71, togetherwith interest.

八、London Arbitration (2012) 857 LMLN1 “The Pearl C”案中,船東把PearlC輪期租給租家,租期約9到12個月,租家主張船東違反合同第8條盡力速遣條款,然后依據合同第15條,主張停租;法官認為在決定減速航行中,引援defaultof Master, officers or crew詞語適用恰當,判租家有權索賠此損失。

The owners’ appeal under section 69would also be dismissed. The owners had submitted that the error of law made bythe tribunal was its failure to address section 12(1)(b) of the Act at all.That submission would be rejected. The tribunal had expressly addressed section12(1)(b) and made findings in respect thereof.

The tribunal had upheld thecharterers’ performance claims (1) on the basis that the owners were in breachof clause 8 in that the vessel had failed to proceed with the utmost dispatch,alternatively (2) that the charterers were entitled to deduct the time lost dueto slow steaming under the first part of the off- hire clause, clause 15.

The owners submitted that thetribunal had made errors of law in coming to those conclusions. However,that submission would be rejected. On a fair reading of the award, the tribunalhad not made any errors in their approach. Their findings of fact justifiedtheir conclusions in upholding the charterers’ performance claims.

九、LondonArbitration 11/13 (2013) 877 LMLN 4 案中,一靈便型船以Asbatime 1981格式,執行一個從巴西Santos裝糖的TCT航次。船于2012年5月8日在Santos交船,但隨后驗艙不通過。船員繼續備艙,最終于10日下午通過驗艙。租家向船東索賠損失,鑒于合同為net loss of time clause,法官駁回租家索賠主張。

其合同第91條描述如下:

“Vessel’s holds on delivery to becompletely clean … and in every way ready and suitable to load charterers’intended cargo(es). If the vessel is rejected at loading port(s) bycharterers’/shippers’ surveyors or competent authorities, then the vessel to beoff-hired from the time of failure until all holds pass re-inspection by themand any time lost and all expenses caused thereby to be borne by owners. Thisclause is without prejudice to [charterers’] rights under the charter party.”

Held, that the charterers’ claim for additional off-hire had to fail. As amatter of construction, both clause 66 and clause 91 were “net loss of time”clauses, in that they were very similar to clause 15 of the NYPE charter. Thematerial words were “any time lost thereby”, which had the effect of convertingclause 15 from a period provision into a net loss of time provision (The Pythia [1982] 2 Lloyd’s Rep 160).If the charterers had been able to use the vessel while the holds or hatcheswere being worked on between 8 and 10 May, the vessel would have been on hire.

The charterers’ claim for damagesalso failed. Their assertion that the vessel could have berthed on 8 May if shehad passed the initial inspections was based on conjecture rather thansubstantiated fact. But even if that assertion were correct, the owners were rightin their contention that clauses 66 and 91 provided a complete code in respectof damages flowing from the relevant events; and under that code, the damageswere clearly restricted to the period of the named off-hire event.

十、London Arbitration 24/16 (2016) 960 LMLN 2 案中,租約以帶有附加條款的NPYE 46格式,執行一個TCT航次,租期約30天。船于3月9日1218抵達第一裝港,但由于沒有泊位,按排隊預計3月13日左右靠泊。9日1230左右開始驗艙,1345驗艙不通過。船員繼續備艙,最終于12日1145通過驗艙。因為驗艙不通過,導致船舶需重新排隊,在驗艙通過后,其中第4艘先行靠泊的船于17日2215先靠泊,最終該輪按排隊于19日0105才靠泊裝貨。其中合同主要條款如下:

7. – Hold condition on arrival at 1stloading port to be clean…and ready to receive charterers’ intended cargo, allrespects subject to the shippers surveyors’ inspection. If the vessel failssuch survey, the vessel to be placed off-hire from time of the rejection untilaccepted in all holds, and any extra directly-related costs/expenses/timetherefrom to be for Owners’ account.

租家依據該條款,主張從9日1245到12日1245共70個小時停租,并索賠額外的損失,從13日1600到17日2215共102.25小時。

法官認為該條款可分為三部分,(1)抵達時貨艙清潔的保證性條款,(2)期間停租條款,及(3)額外的直接相關費用條款,判租家有權停租并索賠額外的損失。

Held, that the outcome of the arbitration depended on the proper constructionof clause 7 of the charterparty. The clause could be conveniently divided intothree parts, namely: (1) the clean holds on arrival warranty; (2) the periodoff-hire clause; and (3) the additional “directly-related”costs provision.

At the outset, the tribunal could notsee any reason not to interpret each of those provisions in accordance with itswordings and to give effect to the meaning of those wordings.

As for the warranty, its wording wasclear and the owners had admitted their breach of it.

As for the period off-hire provision,its meaning was also clear, namely that the vessel was to be off-hire for theperiod commencing at the time she failed inspection and ending at the time shewas accepted as clean. There was nothing unusual or unbusinesslike in such aprovision; it set out how breach of the warranty was to be calculated in termsof hire, and avoided the need to investigate whether or not the charterersactually suffered a loss of time as a result of the cleaning.

As for the additional“directly-related” costs provision, that, too, was clear in its meaning and wasuncontroversial from a commercial point of view. It meant that if, inconsequence of the breach of warranty, the charterers did indeed suffer loss“therefrom” in terms of costs and expenses or time, then the owners were to beresponsible for that loss – provided such loss was “directly-related” to thebreach of warranty.

It was certainly possible that abreach of warranty of that type would give rise to delay in berthing. It wouldnot always do so; it depended on the actual situation in the port at that time,over which the owners had no control; but if it did do so, then the owners hadto take the risk of that – provided the delay in berthing was“directly-related” to the breach.

In the present case, the delay in berthing,at least until 22.15 on 17 March, was directly related to the vessel having tore-enter the queue for berthing once her holds had been accepted on 12 March.In other words, there was no reason for her delay in berthing other than herdelayed entry into the berthing queue.

once the tribunal had held that theowners were responsible for the additional 102.25 hours’ delay incurred, therewas no reason, either on the wording of clause 7 or more generally, why theowners should be entitled to discount that liability by the loss of time underthe off-hire clause. The off-hire provision and the additional“directly-related” costs provision were separate provisions, addressingdifferent periods of time and circumstances, and each should be interpreted in accordancewith its wording, without the need for cross-reference. The breach of warrantygave rise to time spent in cleaning and, as a result, time spent in waiting fora berth. There was no reason why the later period of time should be discountedby the earlier period. The word “extra” pointed to something in addition, notto a set-off or net result.

Accordingly, the owners’ claim forthe balance of hire failed and the charterers were entitled, in addition to theoff-hire period of 70 hours, to compensation for the additional 102.25 hoursthat the vessel spent in waiting for her berth after her re-entry into theberthing queue. That compensation took the appropriate form of being relievedof the obligation to pay hire for that time.

從以上幾個判例,不難看出,如果未發生阻止船舶完全運作的事情,租家實際上沒損失net loss of time,或者這些是外部原因,租家方面的過失,那么在這些情況下租家都不可以主張停租,除非合同有相反規定。

現結合開頭提到A輪案件,再具體解釋該15條停租條款的基本原則。

合同第15條條款如下:

15. That in the event of the loss oftime from deficiency and/or default of men crew or deficiency of orstores, fire, breakdown or damages to hull, machinery or equipment, unlesscaused by Charterers and/or their Agents and/or their Servants or unless samehas been damaged due to stevedores' fault, grounding, detention byaverage accidents to ship or cargo, drydocking for the purpose of examinationor painting bottom, or by any other cause preventing the full working of thevessel, due to vessel's or Owners or crew fault the payment of hireshall cease for the time thereby lost; and if upon the voyage the speed bereduced by defect in or breakdown of any part of her hull, machinery orequipment, the time so lost, and the cost of any extra fuel consumed inconsequence thereof, and all directly related extra expenses shall be forOwners' account deducted from the hire.

該停租條款,可以分為兩部分,第一部分為有損失及阻礙中斷了租家需要的服務,第二部分為由于機械方面的原因導致船舶航速油耗可扣除的情況。

關于停租,法官Kerr在The Mareva A.S.[1977] 1Lloyd’s Rep.368 at page 381說到:只要船舶能夠給租家提供想要的服務,那么租家就得連續支付租金;但是如果不能,給租家造成了損失,那么租家就可以停租。

The object is clear. The Owners providethe ship and the crew to work her. So long as there are fully efficient andable to render to the charterers the service then required, hire is payablecontinuously. But if the ship is for any reason not in full working order torender the service then required from her, and the charterers suffer loss oftime in consequence, then hire is no payable for the time so lost.

這里提到required、lost; 那么在該案中,雷達損壞是否不能給租家提供需要的服務,給租家造成損失了呢?

首先來看租家需要船舶在這種情況下需要提供的服務,雖然租家是想讓船舶馬上開航離港,但因為大霧,船舶能做的還是只能呆在泊位。因此雷達損壞并沒有preventing the full working of the vessel,租家在這種情況下需要船舶提供的服務只是船舶呆在泊位等開航,而船舶呆在泊位完全沒有問題。

關于這點,可參法官Staughton 在The Berge Sund [1993] 2 Lloyd’sRept.453 說法如下:

The question is not what the charterershoped or expected their orders would be, but what service they actuallyrequired.

及法官Burto 在 The TS Singapore [2009] 2 Lloyd’s Rep.54 解釋的:

So if the next operation that the shipneeds to undertake is to sail to the discharge port, but she is unable to doso, then the ship is being prevented from working. On the other hand, if thesituation is that the ship is unable to sail, but the next operation requiredof her is to remain at berth and discharge, the full working of the vessel hasnot been prevented.

那么租家是否有由于雷達損失造成實際時間上的損失呢?顯然沒有,不管雷達壞沒壞,由于大霧船舶都不能開航,都得在碼頭等待天氣好轉。

另外一種情況是,除非大霧發生在雷達損壞之后,也就是說引水上船發現雷達損壞,導致船舶不能馬上開航,那么在這種情況下,雷達損壞直接導致 preventing the full workingof vessel;船不能馬上開航,租家有時間損失netloss of time,那么租家就可以停租。

要不然不管大霧與否,租家都無權停租。關于這種大霧等風險,可參法官Rix 在The Doric Pride[2006] 2 Lloyd’s Rep.175說法如下:

Under a time charter therisk of delay is fundamentally on a time charterers, who remains liable to payhire in all circumstances unless the charterers can bring himself within theplain words of an off-hire provision.

除非能引入到停租條款,要不期租下造成這些延誤的風險都是租家自己的。此外條款中模糊的字眼將對船東有利,因為租家想扣租,可參法官Bucknill如下解釋:

The cardinal rule…ininterpreting such a charter-party as this, is that the charterers will pay hirefor the use of the ship unless he can bring himself within the exceptions. I thinkhe must bring himself clearly within the exceptions. If there is a doubt aswhat the words means, then I think those words must be read in favour of theOwners because the charterers is attempting to cut down the Owners’ right tohire.

雖然在該案中租家不可以停租,但是筆者認為,因為船東違反合同中的保證條款,租家有權索賠損失。

合同第一條描述如下:

1.That the Owners shall provide and pay for all provisions, wages and consularshipping and discharging fees of the Crew; shall pay for the insurance of thevessel, also for all the cabin, deck, engine-room and other necessary stores,including drinking water for crewonly, lubricating oil,garbage dues except if compulsory which to be paid by Charterers, boilerwater and maintain her class and keep the vessel in a thoroughly efficientstate in hull, machinery and equipment with inspection certificates necessary to comply with currentrequirements at ports of call andcanals for and during the service.

Clean recap中關于船東保證條款的第一條如下:

- Vesselis a single deck, self-trimming bulk carrier and will be in a seaworthycondition at all/any time throughout the duration of the Charterparty.

此條款中包含during the service及throughout the duration ,因此該保證條款warranty term可以定義為連續性保證條款continuously warranty。眾所周知,在英國普通法下,如果保證條款被違反了,那么合同的守約方可以索賠損失。雷達損壞,顯然導致船舶不再是seaworthiness,這種連續性保證條款和只要保證船舶在交船的那一刻seaworthiness的情況不同,船東違反了該連續性保證條款,租家有權索賠損失。

那么租家是否有損失呢?參引水在該事件中的報告:

I boarded the vessel atapprox 1415.

Having spoken to Estuarycontrol, Tug Masters and the skipper of the silver swan(for fog info) I decidedto delay sailing and stay on the berth due to thick fog around the Newshotarea. At this this time the Master was not on the bridge and I was informed hewas still completing paper work with the agent.

At approx 1445 the Mastercame to the bridge and I informed he we had to wait on the berth until we hadsufficient visibility to proceed and I would stay with the vessel until wecould go.

At approx 1500 I heard analarm coming from the RADAR and it stopped working. I asked one of the Officersif it was working to which he replied 'yes no problem'. I then witnessed a crewmember climb the mast and attempt to spin the RADAR scanner by hand to get itgoing. After a few attempts the crew did manage to get the RADAR working.

I kept asking the Crew ofthe vessel if the RADAR unit was faulty to which I was getting no informationregarding why it had stopped or why a crew man was having to climb the mast tospin the scanner to start it again.

After not getting a suitablereply to my questions from the Master I asked him to stop the RADAR and startit again. He did stop it, but it would not start again.

Having completed a dynamicrisk assessment I decided to cancel the sailing due to patchy visibility at thetime and a none operational RADAR.

I do have a video of theRADAR not starting should anyone require it.

引水提到 I informed he we had to wait on the berth until we had sufficientvisibility to proceed and I would stay with the vessel until we could go. 也就是如果雷達沒有壞,他們是想呆在船上直到天氣好轉可以開航;但由于雷達損壞,引水選擇離船。

雷達損壞(船東違反連續性保證條款),直接導致引水離船及代理取消拖輪,由此產生的如下相關費用,租家可以找船東索賠。

· Towage cancelling fee and fuel surcharge GPB12,278 15,224.72USD

· Boatman and pilotage cancelling charge GBP411.92 510.78USD.

額外的如泊位費則由于主因是壞天氣不能離港,這部分不可以找船東索賠;在時間計算方面租家也沒有額外的損失,一樣不可以找船東索賠。

關于此索賠部分,可以參閱法官Kerr在The Domocritos [1975] Lloyd’s Rep.386 at page 401:

Since this point appears rarely to have arisen inpractice, it is right to repeat that it was common ground that if a period ofoff-hire results from a breach of the charter on the part of the owners, thenthe charterers would in law be entitled to damages quite apart from not beingliable for hire, or being able to recoup any hire paid in respect of thisperiod, if they can establish that they have thereby suffered additional loss.

及《Time Charter》 25.73 Claims by thecharterers,25.74 Claims by the Owners 的如下解釋:

The off-hire clause does notcut down any right that the charterers might have to claim damages from theOwners if an off-hire event has been caused by the Owners’ breach of charter.In such a case, if the charterers can prove that they have suffered loss inexcess of or in addition to the loss of the use of the ship, then they areentitled to damages in respect of that loss.

However, if that were wrong,the Owners would be able to claim the hire lost from the charterers, as damagesfor the charterers’ breach of charter.

在The Dodecanese案中,法官Pilcher認為由于租家違約裝載非法貨物,船東有權索賠損失。

Pilcher J held that theOwners were entitled to recover the hire for the 26 days which they had lostunder the off-hire clause as damages for breach of the charterers’ obligationto ship only “lawful merchandise”.

總結:

在這些判例中,我們不難發現,法官在遵循先例的基礎上也基于他們的常識來解釋合同中的相關條款,整體遵循了嚴格解釋的原則。如第六個案中的any other cause只局限于與該條款中其它停租事項類似的原因,但如果加上whatsoever,變成了any other cause whatsoever, 那么租家只要證明時間損失時由于船舶完全運作造成的,不管是被海盜劫持還是別的,都可以主張停租。如第十個案中加了any extra directly-related,那么只要租家證明損失和船舶不能通過驗艙直接相關,那么就可以找船東索賠損失。

因此該類驗艙條款最好修改為如下,以免夸大船東風險。

Owners and their crews willtry their best to make holds clean, dry, free of rust and in all respects,suitable to load charterers’ intended cargo. But if may fail hold inspection,The charterers are entitled to place the vessel off hire from fail inspectionuntil final pass, and time lost thereby will be for Owners’ account.

這樣船東就可以避免出現違反保證性條款的風險,及把offhire限制在net loss of time clause,避免出現 period off hire clause的情況。

此外,如果租家想停租,那么有以下三點需租家舉證:

1. 船舶完全運作的情況受到阻礙

2. 這些阻礙是受到停租條款中列舉其中一個原因或者多個造成的

3. 租家有實際的損失

因此如果租家想將某種情況作為能引入到停租條款并因此有權停租船東,如案四中衛生當局拒絕進港,案五中收貨人扣押,案六中海盜劫持等等情況,那么最好的是將該事項明確列明,寫入停租條款,避免執行過程中出現爭議。

相反,船東在面臨這些情況下,應該盡力去避免,拒絕同意,避免出現類似于案十中的被動局面。

在英國法下訂約自由,如果在合同恰定前,都已經清晰列明了,那么不管租家還是船東都應該表現出專業的一面,好好執行租約,避免租約受挫。訂約的目的是為了合約得以執行,而不是為了將來毀約。

參考資料:

1. 《Timecharter》

作者:詹先凱 香港中遠海散,來源:海商法資訊

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